Hong Kong's Top Jurist Defends Indeterminate Pretrial Detention

Also publicly cedes power to appoint trial judges to government

Hong Kong‘s top jurist, Court of Final Appeal Chief Justice Andrew Cheung Kui-nung, has effectively defended the indeterminate pretrial detentions of activists in the territory’s national security cases, upholding months of delays by prosecutors to put 47 opposition activists, many of them former lawmakers, on trial.

Police raided the homes and offices of 55 activists in January 2021 under Hong Kong's then newly-implemented National Security Law, accusing the 47 a month later of vague charges of “offense of conspiracy to commit subversion,” mostly for daring to hold a democratic primary to determine their slate of candidates for subsequently postponed 2020 legislative elections. Despite government threats, it was the most-heavily participated primary held in Hong Kong since the 1997 handover.

After a four-day bail hearing, the court remanded 32 of them to jail. Although September 23 was set last July as the date of their court hearing, the date has continued to recede into the future and now is now set for March or later.

Cheung, following the formal opening of the new judicial year on January 24, said the courts should not sidestep what he called necessary procedural steps “for the sake of having a speedy trial.” During his speech, he also said the judiciary would defer to Chief Executive Carrie Lam Cheng Yuet-ngor in selecting justices to oversee national security cases, acknowledging that the judiciary had ceded the power to appoint trial judges to the government.

“For cases concerning offenses endangering national security, only judges designated by the Chief Executive under Article 44 of the National Security Law can handle them, and this has given rise to comments in some quarters in relation to the impartiality of the designated judges,” he said. “It is of course not my role as head of the judiciary to make extra-judicial comments on the law or its operation. However, it is conducive to public confidence in our judicial system to assure the community that, from the judiciary's perspective, there is no question of the impartiality of our courts being affected by this special arrangement.”

Judges designated by the chief executive, he said, by definition, “are persons who have satisfied the high requirement of judicial and professional qualities under Article 92 of the Basic Law to be appointed as judges in the first place.” They are subject to the judicial oath which all judges are required to take under Article 104 of the Basic Law under which a judge swears to serve Hong Kong “conscientiously, dutifully, in full accordance with the law and with integrity, and to safeguard the law and administer justice without fear or favor, self‑interest or deceit.”

With Lam deferring to Beijing in all important matters, however, the decision effectively means the Chinese government has sway over trials, with the outcome largely predetermined, as it is in China. Cheung also warned that the independence of controversial national security judges was not to be questioned despite the fact that they are specially appointed by the government and not the judiciary. 

"Placing people for long periods in pre-trial detention is an injustice itself, especially when one considers the so-called "national security" charges these activists face primarily involve the peaceful exercise of rights that should have never been criminalized in the first place,” said Phil Robertson, the deputy Asia director of Human Rights Watch in an email. “Sadly, the chief justice and other Hong Kong judges seem more intent on finding excuses why they cannot satisfy national security offense bail conditions than recognizing the national security laws themselves are unjust and rights-abusing. No wonder Hong Kong's rule of law situation is sliding down a slippery slope." 

In fact, since Beijing cracked down dramatically on what been one of Asia’s freest cities in 2020, thousands of people have been arrested in connection with anti-government protests over China’s refusal to grant universal suffrage promised in the Basic Law promulgated between China and the United Kingdom, which China has abrogated repeatedly almost since it was passed. At least 600 have been convicted since mid-2019, according to the South China Morning Post, newspapers have been closed, television and radio programs muzzled, and reporters and editors jailed and activists intimidated.

Cheung has been on the final court bench since 2018, taking over as chief judge in January 2021. During that time, he served as one of three designated national security judges who allowed the government to appeal bail for Apple Daily founder Jimmy Lai, who was charged with colluding with foreign forces under the security law and has been remanded in custody pending a February hearing. In 2016, as a member of a lower court, he ratified a decision confirming the disqualifications of elected pro-democracy lawmakers Sixtus “Baggio” Leung and Yau Wai-ching, who had refused to take their oath as legislative council members.

Despite his willingness to give up longstanding elements of Hong Kong law, Cheung insisted in his speech on the opening of the new judicial year that “Hong Kong is a society governed by the rule of law.”

As a mature common law jurisdiction, he said, “Hong Kong has an established public law regime which ensures that the government and other public bodies operate within the law and that public powers are exercised in accordance with the requirements of the law.” He described an independent judiciary as an “essential lynchpin of the rule of law in Hong Kong” at the same time he was ceding powers to appoint national security judges to the government and allowing prosecution lawyers to delay cases at their discretion.

Over the past two years, he said, “the subject of judicial independence in Hong Kong has attracted a fair amount of attention and comments, not only locally but overseas also. Healthy attention and constructive comments on the judiciary and its work are always to be welcomed as they help to improve our work and remind us of the utmost importance of judicial independence to the maintenance of the rule of law and the continued success of Hong Kong under the "one country, two systems" arrangement.”

In recent months, attempts to intimidate or otherwise exert improper pressure on judges involved in trying cases arising from the events in 2019 or national security cases have been on the rise, he said, calling them “a direct affront to the rule of law and judicial independence. They certainly deserve condemnation and indeed many have spoken out against them in strong terms.”

In conclusion, he said, “I would reiterate that the Hong Kong Judiciary is fully committed to maintaining an independent, impartial and efficient judicial system which upholds the rule of law and safeguards the rights and freedoms of everyone in Hong Kong in accordance with the law.”

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